HKSAR v. CHAN MAU LUNG

HCMA 61/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO.61 OF 2003

(ON APPEAL FROM KCCC NO. 16229 OF 2002)

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

1. The applicant, Chan Mau Lung was convicted by Colin Mackintosh Esq. at the Kowloon City Magistracy on a charge of possession of obscene articles for the purpose of publication, contrary to section 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance Cap. 390.

2. The applicant sold obscene VCDs in Temple Street from a make shift stall comprised of a folding stool and a polythene box. He also tried to solicit customers by shouting out "A hundred for eight" and, amongst other things, "Category IV, no squares."

3. There were a total of 98 VCDs with the following contents:

- Males and females performing sexual intercourse;

- Males and females performing oral sex;

- Female Homosexual activities; and

- Males and females performing anal sex.

4. It was agreed that the sexual organs of males and females were clearly visible.

5. The magistrate adopted a starting point of 18 months and said such starting point had been well established. He said the relatively small quantities of the VCDs were not significant as the amount that the applicant happened to be caught with was purely a matter of chance.

6. The magistrate reduced the starting point by 3 months because what the applicant operated was not a formal shop. The magistrate also took into consideration the fact that the applicant had admitted quite a lot of the prosecution case and had simply limited his defence to one issue.

7. The final sentence imposed was one of 15 months' imprisonment. The applicant appealed against both conviction and sentence.

8. On 9 April 2003, Deputy Judge Line in the Court of First Instance of the High Court dismissed the appeal against conviction. Deputy Judge Line referred the appeal against sentence to this Court under section 118(1)(d) of the Magistrates Ordinance as he thought there was a need for this Court to consider the question of sentence in this area because of social changes that had occurred.

9. It was pointed out by Deputy Judge Line that objectionable materials such as those contained in the 98 VCDs in question were freely available with limited control, if any, on the Internet.

10. An offence under section 21(1) of the Control of Obscene and Indecent Articles Ordinance carries a maximum sentence of $1 million fine and 3 years' imprisonment.

11. Ms. Chow, for the applicant and Mr. Wong for the respondent, have both helpfully taken us to previous decisions on sentences for publication and/or possession for publication of obscene articles.

12. In AG v Tang King-ming [1986] HKLR 210, it was decided that immediate custodial sentences coupled with substantial fines should be the primary option for publishing objectionable articles for gain if the following factors existed:

- that the material is obscene;

- that the trade is flourishing in the face of existing sentences;

- that the case before it constitutes a substantial contribution thereto so that deterrence is a paramount consideration.

13. The Court of Appeal recognized the difficulties in providing guidance in sentencing as "firstly, because the courts are obliged to measure the heinousness of the material by the yardstick of contemporary sensibilities - a very difficult test to apply in a mixed society at a time of shifting values; and, secondly, because the material itself is as various as the whims and disorders of the appetite it is designed to gratify."

14. It was suggested, however, that comparatively short sentences of imprisonment may be adequate in mild to average cases and that fines or more lenient treatment should continue to be imposed in very small or "one-off" instances of transgression.

15. It was further suggested that the relative "hardness" of the material would remain a "potent aggravating factor".

16. Ms. Chow concedes that there has been a general increase in sentence in recent years probably due to the prevalence of the offence and the starting point adopted ranges from 9 to 18 months.

17. Generally the higher starting point was adopted in cases involving a very large number of offensive articles sold in shop premises. In cases involving high degree of obscenity or depravity, the sentence will also be enhanced.

18. In HKSAR v Lam Chung Leung HCMA 595 of 2002 (unreported), a starting point of 18 months was adopted for each of the 2 charges involving about 1,500 and 2,500 DVDs and VCDs.

19. In HKSAR v Hung Heung Lam HCMA 670 of 2002 (unreported), a starting point of 15 months was adopted for each of the 3 charges involving 1,277, 3,174, and 2,289 DVDs and VCDS.

20. In HKSAR v Yiu Chi Yan, Peter HCMA 623 of 2001 (unreported), a starting point of 30 months was adopted for material of or near the worst case involving children stored in CD-Rom form.

21. Beeson J summed it up well in HKSAR v Yu Man Lung HCMA 704 of 1999 when she said the following:

"A court in sentencing for such offences will take into account the number of articles, the level of obscenity; the circumstances of the sale, the sophistication of the method of sale, and the prevalence of the offence, as well as the usual factors personal to the offender that are generally relevant in sentencing. However, the main consideration for such sentences is deterrence, not just for the offender before the court, but for all those others who find this lucrative trade, even at its fringes, so attractive."

22. There are infinite varieties of circumstances pertaining to offences relating to obscene articles in terms of the nature, contents and quantity of the articles. The circumstances in which the offences are committed and the background of individual defendants also vary. It is thus difficult to lay down exact sentencing guidelines.

23. Generally we agree that an immediate term of custodial sentence is still required as deterrence.

24. The offenders need to be deterred because the standard of morality of our society is such that "the wide distribution and ready display and availability of material showing or suggesting explicit sexual activity of any kind" are still objectionable despite the more open society and more ready availability of such materials from other sources.

25. Children need to be protected and psychologically disturbed people should not be aroused or encouraged.

26. It should be borne in mind that in the business of publishing obscene articles, people with dubious backgrounds are generally employed as front men by persons who stand to profit from the business. Unless people are deterred from participating in this illicit business, it is likely that the business will continue to flourish.

27. We also cannot ignore the prevalence of the offences in question as demonstrated by the cases to which we have been referred.

28. The fact that similar materials are more readily available nowadays does not make the offence less serious. Despite the obvious difficulty involved, there are concerted efforts worldwide to stamp out serious cases of publication of obscene materials, particularly when children are being exploited.

29. In the absence of exceptional mitigating factors, an immediate custodial sentence of 9-12 months as the starting point is appropriate for the offence of publishing obscene articles or possession of obscene articles for the purpose of publication.

30. Contrary to the view taken by the magistrate, we are persuaded that the quantity of the objectionable materials is a relevant factor. We wish to echo the sentiment of Woo JA when he expressed his view in HKSAR v Suen Shun-wing [2000] 2 HKC 319 at 328:

"While I also agree with the submission that the sentence should not be directly proportional to the quantity of VCDs seized, it is clear law that the quantity involved is a matter to be taken into account in considering sentence. That does have a bearing on the size and damaging effect of the offending operation and the overall criminality of the offence."

31. In cases involving large quantities of VCDs or when a wide audience is targeted (publication on the Internet, popular magazines etc.), the starting point will have to be adjusted upward.

32. Unfortunately, we have not been provided with adequate information or data to enable us to specify what constitutes large quantities. However, from the cases cited, it appears that anything less than one hundred should not be classified as "large quantities".

33. We are also persuaded that in cases of utter depravity and repulsiveness, such as bestiality, perverted sexual acts with children, sadistic acts , acts of necrophilia and the like, the starting point has to be adjusted upwards.

34. The court must of course take into consideration the personal circumstances of the accused. A repeated offender will no doubt receive a higher sentence. (see the judgment in Chan Pui-chi [1999] 2 HKLRD 830 per Stuart-Moore VP)

35. Having said these, it remains, to a large extent, a matter of discretion based on the experience and common sense of the sentencing magistrate.

36. The present case is not a very bad case of the type. It was a primitive operation without shop premises and it involved only 98 VCDs. The magistrate reduced the starting point by 3 months to reflect the small-scale operation without shop premises and the fact that the applicant had agreed a significant part of the prosecution case against him.

37. On the other hand, the applicant has 46 previous convictions with a similar offence committed in 2000. It is clearly one of those cases where people with dubious backgrounds are employed as front men for the benefit of others. We consider that this neutralizes the facts in the preceding paragraph.

38. Mr. Wong, on behalf of the respondent also suggests that the starting point actually adopted by the magistrate was 15 months' imprisonment.

39. In our view the starting point adopted by the magistrate, be it 18 months or 15 months, is excessive.

40. We are persuaded that the proper starting point, bearing in mind the nature of the offence and the background of the applicant, should be one of 12 months' imprisonment.

41. A sentence of 15 months means a difference of 3 months, which is a significant proportion of the sentence imposed. The difference should not be overlooked.

42. The appeal against sentence is therefore allowed. The 15 months' imprisonment is reduced to one of 12 months' imprisonment.